Mendez, Juan - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Okay, good morning.

0:06

-

Good morning.

0:07

Interviewer

We are very grateful to you

0:08

for participating in the Witness to Guantanamo Project.

0:09

We invite you to speak of your experiences

0:14

with the Guantanamo Bay Detention Center.

0:17

And we are hoping to provide you

0:21

with an opportunity to tell your story in your own words.

0:23

People in America and around the world

0:27

need to know about Guantanamo and the detention center.

0:30

And hopefully you're telling your story

0:34

will help them understand what had happened

0:37

and what is still happening.

0:39

Future generations must also know

0:42

what happened in Guantanamo

0:44

and we appreciate you contributing to history

0:46

by speaking with us today.

0:49

If there's any time you want to take a break,

0:52

please let us know.

0:54

And if there's something you said

0:55

that you feel you'd like us to remove

0:56

we can move it if you'd let us know today as well.

0:58

And we'd like to begin by asking you your name and

1:01

your age, and date of birth, and your education,

1:06

a little bit of your background,

1:09

where you were born

1:10

and where you're living now as well.

1:12

-

Okay.

1:13

Well, thank you very much for the opportunity.

1:15

My name is Juan E Mendez.

1:18

And I'm an Argentine lawyer.

1:21

I am actually a lawyer in the United States as well.

1:25

I studied law in Argentina, graduated in 1970.

1:29

But then when I came to the States I went back to school

1:34

and I got accredited to the bar

1:37

in the District of Columbia in 1981.

1:40

And I've always worked on human rights matters.

1:46

Nowadays, I teach full time

1:52

here at the Washington College of Law

1:54

of the American University.

1:56

I until only a few days ago

1:59

I was the United Nations special rapporteur on torture.

2:01

A position that I held for six years,

2:06

two terms of three years each.

2:09

I became involved in

2:13

human rights and particularly on issues of torture

2:17

when I was even a law student in Argentina,

2:21

because my country in the late 60s and early 70s

2:25

was undergoing a very serious problem of armed conflict

2:29

and violence.

2:34

And prompting also successive

2:36

takeovers by the military and coup de tat.

2:41

And so torture was an everyday occurrence

2:45

where people who were arrested

2:48

at least those who were arrested for political reasons.

2:51

And I started defending people,

2:54

trying to stop their torture,

2:58

trying to get them released from prison even

2:59

shortly before graduating.

3:03

And then of course, more extensively when I graduated.

3:05

And in 1973, we recovered democracy briefly

3:09

and the situation was still very violent however.

3:13

So very soon we started having political prisoners again

3:19

and I defended political prisoners

3:23

between 70 and 75, more or less.

3:26

And part of the our defense of political prisoners

3:30

was to show that they had been tortured.

3:33

Eventually in 1975, I was myself arrested.

3:36

Actually I was arrested in 1974 first

3:41

in my hometown, the Mar del Plata.

3:44

But at that time I was held for only three days

3:46

and not mistreated

3:49

and then released.

3:52

But that signal for me that I had to leave my hometown

3:53

because it was becoming very dangerous.

3:57

So I went to Buenos Aires,

3:59

and a year later in August of 1975, I was arrested.

4:01

And this time I was very severely tortured

4:06

with electric prod, mostly,

4:10

but also with beatings, et cetera.

4:11

Interviewer

For how long was that?

4:15

-

Well, I was held incommunicado for about eight days

4:16

but the torture actually happened in the first three days.

4:21

Maybe even less than that.

4:25

It was difficult to estimate because they kept me awake

4:26

and took me to different places.

4:30

All told, I think I had five sessions of the picana,

4:34

as we called it the cattle prod,

4:39

in about, I don't know

4:42

what seemed like a long day, day and a half maybe.

4:44

And then after that

4:49

I was recognized as a legitimate detainee

4:51

and so they didn't torture me anymore, but then...

4:55

Interviewer

What does that mean?

4:57

-

Well, in the sense that they recognize

4:59

that they were holding me.

5:00

Before that when I was being tortured they

5:02

it was kind of clandestine detention.

5:05

So when I was put in a regular police station

5:09

I was still incommunicado

5:12

but they weren't torturing me anymore.

5:14

And then I was sent to a penitentiary

5:17

where I was with other political prisoners.

5:19

Just about everybody had the same treatment.

5:24

Some were tortured even more severely than me,

5:27

or at least for longer periods.

5:30

And

5:33

in the penitentiary the conditions were very good

5:36

at the beginning but very bad towards the end.

5:40

And then eventually in 77

5:43

I was allowed to leave the country.

5:44

I was literally escorted to a plane.

5:46

I was not released in Argentina,

5:49

but that's because they didn't have any charges

5:52

against me and they were holding me

5:55

in administrative detention.

5:56

And they basically, because of international pressure,

5:58

allowed me to go into exile.

6:03

And I came to the United States and,

6:05

you know, soon thereafter I started working

6:09

on international human rights.

6:11

Interviewer

Just a little bit about that,

6:14

did we ask why were you well-known

6:15

as you said there was international pressure?

6:18

-

No, I wasn't particularly well-known.

6:20

I was a young attorney.

6:22

I mean, a attorneys were

6:23

well known for defending political prisoners,

6:26

but by the time I was arrested

6:29

some of the more prominent better known ones had been killed

6:31

or had had to go into exile.

6:35

So, a younger generation of attorneys including me

6:38

were beginning to do this work.

6:43

We did it in somewhat different conditions.

6:45

We weren't, you know, we didn't use publicity a whole lot

6:47

because it was very dangerous.

6:50

So we met our clients

6:52

or the families of people who were arrested in bars

6:54

and restaurants

6:57

and we came early to the court,

6:59

left a brief and run away,

7:02

because otherwise we might be arrested.

7:06

So, but of those group of younger attorneys,

7:09

I was fortunate to be the first one to be arrested.

7:14

Because many of them, I think seven at least

7:18

of a group of maybe 10,

7:21

were arrested after the military coup was already in place.

7:23

And they're all counted among the disappeared.

7:29

Interviewer

Did they threaten you with death

7:32

while you were there?

7:35

-

Oh yeah.

7:36

Well, during the torture sessions, they did it all the time.

7:37

But even more cynically, I would,

7:42

it was so painful that I I actually asked them to kill me

7:45

and they would say, yeah

7:48

but after we finished with all this.

7:49

Interviewer

Was it just designed

7:52

to have you leave the country or to no longer represent

7:54

people who are arrested?

7:58

-

No, no. They were asking,

7:59

they were trying to get intelligence from me.

8:00

They wanted to know how we organize a network

8:03

of attorneys that allowed us to react quickly

8:06

to detention of activists.

8:10

And they wanted to dismantle that.

8:14

And so they wanted me to tell them who the others were,

8:17

where we met, et cetera.

8:20

How we got the information.

8:23

So they, because they were considering us the attorneys

8:27

as part of the subversive organization

8:30

and in their language that they were fighting.

8:32

And of course, some of those organizations

8:36

were armed and violent and some were not.

8:38

And we defended all of them.

8:40

So, no they were looking for intelligence.

8:42

I mean, they weren't even looking for evidence against me

8:46

because if they had found something maybe they would have,

8:50

you know, subjected to some kind of

8:54

court appearance and trial,

8:56

but instead they just held me in

8:58

prolonged administrative detention without trial.

9:01

I should stress as most of the prisoners they had then,

9:05

I think had last count maybe something like 8,000

9:11

young men and women who were held for several years

9:17

in administrative detention.

9:21

And of those, I was again

9:25

pretty lucky that because of international pressure

9:27

I was allowed to go into exile relatively early on.

9:30

I spent a year and a half in prison,

9:34

but the average of the friends that I made there

9:38

spend four, three, four, five years in prison.

9:41

Some up to eight.

9:44

And the international pressure

9:47

was mostly because not because I was well-known or anything,

9:49

but because I had been a foreign exchange student

9:52

in the United States,

9:54

and the family that I had lived with in Iowa,

9:56

now living in Illinois and at that time

10:00

I mean, living in Illinois,

10:02

had been in contact with me.

10:04

So when they learned that I was in custody

10:06

they staged a campaign to get me out.

10:08

And the campaign involved senators

10:11

and members of Congress of the United States,

10:14

the State Department,

10:18

but also Amnesty International

10:19

that adopted me as a prisoner of conscience.

10:21

And, you know, it was at a time when there was

10:25

in Europe and the United States,

10:29

some concerns about what was going on in Argentina

10:31

but not a whole lot of information.

10:35

And so my case, it was well-documented and everything

10:37

became a good case for Amnesty and for others to work on.

10:42

Again, for the third time I was lucky there too.

10:47

Interviewer

So when you came to the US

10:51

did you fall on your feet it sounded like, right?

10:53

-

Well, I was allowed to go to Paris,

10:56

not to the United States and there I met my family.

11:00

My wife and two of my children there, who were born already,

11:03

were waiting for me in Brazil,

11:07

and they flew to Paris so we could get together.

11:09

But we didn't want to stay in Europe

11:13

and so we asked to come to the United States.

11:15

And about six weeks later, this is 1977.

11:19

We came to the United States.

11:24

We stayed with that American family at first,

11:25

for rest and recuperation.

11:29

And then as soon as I could I got a job and started working.

11:30

And then we moved on.

11:36

We lived for about a year in Illinois,

11:38

working with the Catholic church

11:41

and working with immigrants.

11:42

But then we came to Washington in 78

11:45

to work in public interest law.

11:51

And simultaneously I started the process

11:54

of getting my accreditation

11:57

as a lawyer in the United States.

11:59

Then I worked for many years for Human Rights Watch,

12:03

what is now Human Rights Watch

12:05

when I started it was called something else.

12:07

But I worked for like 15 years with them.

12:10

Interviewer

What kind of work did you do then,

12:14

which is similar to what you did subsequently?

12:16

-

Well,

12:21

I started the America's Program for Human Rights Watch,

12:22

and then later directed it,

12:26

at first I wasn't the director

12:28

but I was the first person hired to work on that.

12:30

And I also opened their Washington office.

12:35

It was just me at the beginning.

12:37

We basically the job was to monitor and report

12:41

on violations happening in the hemisphere.

12:46

So I wrote about Argentina

12:49

but I also started investigating the Central American wars.

12:52

And I traveled extensively in El Salvador,

12:56

Nicaragua, Guatemala,

12:59

documenting violations by all.

13:01

First by the governments

13:03

but then by all sides in the conflicts there.

13:05

And we published reports.

13:08

Now as an adjunct to that we started doing some

13:10

international judicial activities

13:14

like filing cases before

13:17

the Inter-American System of Protection,

13:19

the Inter-American Commission and Inter-American Court.

13:21

Eventually filing amicus curiae in the United States as well

13:24

in cases involving,

13:30

you know, matters of human rights that we knew about.

13:34

So, I always did have a little bit of legal

13:36

side to my job with Human Rights Watch.

13:42

And that's why eventually the last three years

13:45

of my tenure with Human Rights Watch, I was general counsel.

13:47

Somebody else was running the Americas Program

13:51

but I was a general counsel.

13:54

Interviewer

And what did that entail?

13:57

-

It was a reorganization that we had

14:00

and the senior management

14:02

included several regional directors

14:04

of five areas of the world,

14:07

a couple of thematic directors were three.

14:09

And I was the general counsel.

14:13

I was responsible for policies of the organization.

14:15

Tried to unify what we said in different parts of the world,

14:18

but also for legal analysis,

14:22

that was where we said that something was a violation

14:25

of human rights,

14:28

it was a violation of clearly established

14:29

international standards.

14:32

So that was mostly my job at the time.

14:35

but I also participated in

14:38

our advocacy or lobbying for

14:41

the creation of the International Criminal Court,

14:44

which happened after I left.

14:47

But, you know, had been,

14:49

it was a process that had been going on for several years

14:51

and we participated in that.

14:54

Interviewer

I mean, we're going to get into Guantanamo,

14:56

but this background is important to me

14:57

because do you see patterns of

14:59

solitary confinement, isolation and torture

15:04

the things you yourself experienced

15:06

and other people experienced in Argentina,

15:08

and you'll find similar patterns

15:10

in the other countries you went to?

15:13

-

Yeah, well,

15:16

in Argentina

15:18

the worst feature was disappearances.

15:20

And from what we know now

15:24

people were held in clandestine detention centers

15:27

but not necessarily isolated from each other.

15:29

Eventually they murdered most of them

15:33

and threw them from planes into the ocean

15:37

or buried them clandestinely et cetera.

15:39

For those of us who were in the,

15:45

you know, kind of regular prison system

15:46

as recognized prisoners,

15:51

we had very severe conditions of detention.

15:54

With threats and

15:58

a few even more serious thing.

16:03

For example, people who were with me in the same cellblock

16:04

were taken away and murdered as well.

16:08

So we were all under a constant threat of being executed.

16:10

But they didn't use solitary confinement either,

16:15

we were in medium to high security.

16:19

High security for that period in Argentina,

16:23

nothing compared to prisons now here in the US but,

16:26

you know, cell blocks had had individual cells

16:32

but they didn't keep us in individual cells all the time.

16:34

We came out, I don't know,

16:37

two or three hours in the morning

16:39

and two or three hours in the afternoon.

16:41

And we had contact with each other.

16:43

They did use isolation for punishment,

16:46

but it was disciplinary punishment.

16:50

And it was severe.

16:52

I mean, it would actually beat you up

16:53

when you were in the isolation cells.

16:55

But it was relatively limited in time.

16:59

I mean, I think they still applied the their prison rules

17:02

which at that time

17:06

mandated up to 21 days in isolation as a maximum.

17:09

And they more or less respect,

17:14

well, they did respect it.

17:15

I was in isolation only once for three days.

17:17

Not counting the eight days of incommunicado detention

17:21

there I was of course isolated.

17:24

But,

17:26

in the prison itself

17:29

I was there only once for three days

17:30

and it was pretty bad.

17:33

But they didn't use solitary confinement

17:35

as a weapon against people as much as they did other things

17:39

and were much worse.

17:43

So I got to understand solitary confinement

17:45

basically when I became the special rapporteur.

17:50

And I started understanding what was going on

17:54

especially in this country,

17:58

but then pretty quickly I realized that it was being used

18:00

more and more extensively in many parts of the world

18:04

and for different purposes, for different reasons,

18:07

with less due process guarantees

18:10

for lengthier periods.

18:14

Even in Argentina, for example,

18:16

now during the democracy,

18:17

the prison regulations have changed

18:20

and they can have someone inside a prison

18:22

who's serving time for a disciplinary offense

18:27

up to nine months,

18:30

not 21 days but nine months in succession.

18:31

But still that was

18:34

even in the military dictatorship we didn't,

18:37

it wasn't as severe as that.

18:40

So, you know, understanding all of these matters

18:42

about solitary confinement

18:45

beginning with the case of Bradley Manning,

18:47

now Chelsea Manning,

18:49

which, you know, his case came to light immediately

18:54

after I became the special rapporteur

18:56

because he was immediately identified

18:58

as the source of the WikiLeaks.

19:01

And I learned that he was in solitary confinement in Iraq.

19:03

He was brought to Quantico,

19:07

and he was held in solitary confinement here

19:09

for a total of like eight months.

19:11

And so

19:13

I asked the US government and the Pentagon,

19:16

why was he in solitary confinement?

19:20

And the answers were

19:22

one that because of the seriousness of the offense,

19:25

and the other one

19:29

they didn't call it solitary confinement.

19:30

They said it was prevention of harm watch, they called it.

19:32

Interviewer

Harm what?

19:37

-

Of harm watch.

19:38

Interviewer

Harm watch.

19:39

-

Prevention of harm watch.

19:41

In the end, it doesn't really matter.

19:46

When I asked how many hours that he spent alone in his cell?

19:48

They said 22, 23 hours,

19:52

23, in his case, I think it was.

19:54

And that is solitary confinement, whatever you call it.

19:56

And so I wrote

20:00

a response saying, you know,

20:04

the seriousness of the crime

20:06

especially a crime that has no violence to it or anything

20:09

is no reason to hold somebody in solitary confinement,

20:14

especially if he has

20:17

not been adjudicated as being guilty of the crime,

20:20

he still has a presumption of innocence.

20:23

And as for prevention of harm,

20:26

the Pentagon said that they couldn't disclose

20:29

what the possible harm that they wanted to prevent was.

20:31

I suppose they euphemistically wanted to say

20:36

it was suicide watch, but I'm not sure.

20:39

I mean, they never said that.

20:41

Interviewer

Did they respond to you?

20:45

They would've respond.

20:46

-

They did respond on and met with me.

20:47

I met with a general counsel at the Pentagon

20:48

who is now the secretary of Homeland Security.

20:51

And he put me in touch with people who were

20:56

in charge of more directly military officers

20:58

or directly in charge of

21:02

Manning's situation.

21:05

And of course, as you remember, there was a lot of concern.

21:08

I wasn't the only one asking questions about Manning.

21:11

But eventually he was moved to Fort Leavenworth,

21:16

and there he was no longer held in solitary confinement.

21:21

So, my role ended because

21:25

my mandate didn't extend

21:29

to whether he should be in prison or not.

21:30

That's bailey wake of another special procedure,

21:32

the Working Group on Arbitrary Detention

21:37

But on the Manning case,

21:41

you know, revealed.

21:45

I mean, I started listening

21:46

reading about solitary confinement

21:49

and we decided to write my first thematic report

21:53

about solitary confinement.

21:57

The thematic reports are not about countries.

21:58

They're about practices around the world.

22:01

And so we

22:03

investigated it, we researched it

22:07

and we found some

22:09

unfortunately a lot of it was anecdotal evidence.

22:11

In the United States is much better documented.

22:13

But in other countries we know for example,

22:18

that in Japan and in China,

22:20

solitary confinement is the way you serve time

22:23

when you are sentenced to a very serious,

22:26

sentence to serious prison terms.

22:30

So you literally pass 10 years looking at a wall.

22:32

In other countries it's mostly a disciplinary measure.

22:38

And so we started, we wrote this

22:44

this thematic report with a sense of,

22:49

you know, trying to determine

22:52

that because of prohibition on torture

22:54

is prohibition not only a physical torture but anything

22:57

that has a psychological effect, mental torture.

23:01

We wanted to determine at what point

23:05

and what degree of isolation

23:09

constituted either a cruel inhuman or degrading treatment

23:12

or even torture.

23:14

And in that context I started

23:16

learning about people who are spending 25 years,

23:19

30 years, 34 years in solitary confinement.

23:21

Interviewer

Would you say over your lifetime

23:27

you've seen States move more

23:29

toward doing psychological torture

23:32

and away from physical torture?

23:34

-

Well,

23:37

I think physical torture

23:39

always involves a degree of

23:43

mental torture as well.

23:46

And when they are beating you and they're saying

23:48

and I'm going to do the same to your children.

23:52

You know, that's mental.

23:54

But, I think we haven't really concentrated

23:59

so much on mental torture.

24:03

Years ago we would think that

24:05

only the Soviets did it, et cetera.

24:07

Cause we heard some stories like of Cardinal Vishinsky

24:10

and things like that.

24:13

But in fact,

24:15

you know, I think solitary confinement has crept up on us

24:17

without nobody noticing,

24:22

because it wasn't all that widely used

24:24

even 20 or 30 years ago in the United States.

24:26

In fact, as you probably have heard,

24:29

it was declared unconstitutional

24:32

by the United States Supreme Court

24:34

in the end of the 19th century.

24:36

Because it had been used extensively

24:41

during the 19th century.

24:43

So in, you know, in the first 70 years or so

24:45

of the 20th century, it wasn't used.

24:48

And then when they started building

24:51

maximum security prisons, they were,

24:54

you know, they build them with facilities

24:57

to allow for segregation and isolation

24:59

from the prison population.

25:02

And as you can imagine, if you build them, they will come.

25:04

So, they did use them.

25:09

And so all of a sudden we have

25:12

some people estimate a hundred thousand people

25:14

at any given day in solitary confinement,

25:16

and in prolonged solitary confinement

25:19

or indefinite solitary confinement.

25:21

Interviewer

So you became aware of this

25:23

and you're weren't aware of this when you first started.

25:26

And we were told by many people,

25:29

many of the detainees we've interviewed,

25:32

that they thought Guantanamo

25:34

was more a psychological prison

25:35

than a physical torture prison.

25:37

-

Well, that's hard to say because there's

25:39

what we know now,

25:44

especially through the select committee

25:45

on intelligence report,

25:47

but also from some other, well the

25:50

report of the Armed Services Committee in the Senate

25:54

that was issued at the end of the Bush administration,

26:00

also contained some

26:03

clues that the torture in Abu Ghraib and in Bagram migrated,

26:06

the report says from Guantanamo.

26:11

And that's physical torture.

26:14

And physical and mental, of course,

26:16

but it's not strictly speaking psychological

26:18

and nothing else.

26:20

So I think, as far I can reconstruct it

26:21

but it's difficult to know without interviewing people

26:25

who are still there.

26:28

There was a lot of physical torture

26:30

of a very serious kind in Guantanamo early on.

26:32

And there was also isolation, and segregation,

26:37

and solitary confinement there.

26:39

But,

26:44

I also understand that it gradually let up a bit

26:46

especially under the scrutiny and all that.

26:51

So,

26:54

you'd have to look at Guantanamo on a,

26:57

you know, kind of an historical continuum

27:01

to know what was happening when.

27:03

Interviewer

Is Guantanamo

27:08

representative of the kind of

27:11

behavior that states commit when they torture people.

27:14

Or would you put it into the same framework

27:17

as Argentina or the countries in Central America

27:22

that you looked at or

27:25

is it somehow unique or different?

27:28

-

Well, I mean,

27:30

the uniqueness of Guantanamo

27:32

is that it's military detention.

27:34

So, and the laws of war and conflict clearly state that

27:35

for the duration of the conflict

27:40

states can detain enemy soldiers

27:43

and hold them until the conflict ends.

27:47

Of course, it also says that they cannot be tortured.

27:52

They can be interrogated

27:56

but if they choose to give rank and serial number

27:57

that's all they have to give.

28:00

And that was not observed in Guantanamo.

28:02

I don't think it's even observed today.

28:06

But leaving that aside, the problem is that

28:09

the laws of war applied to a conflict

28:12

that is between states

28:15

or between a state and some of its citizens,

28:17

but that has a beginning and an end

28:21

and a territorial geographic space.

28:23

When you use the euphemism of war on terror

28:28

then the war becomes,

28:32

you know, infinite in time and space.

28:36

And the targets of the war also

28:40

become a lot more diffuse

28:44

and indistinct.

28:47

So it's one thing to hold an enemy combatant

28:50

until the end of hostilities,

28:54

but you can't hold a civilian until the end of hostilities.

28:55

And if you decide by yourself and nobody checks

29:00

whether you actually detained a civilian

29:04

or an enemy combatant, then that's a very serious violation.

29:06

I think that the Guantanamo is egregious mostly

29:12

firstly the attempt of using an offshore detention facility

29:17

theoretically as a means of escaping scrutiny by US courts.

29:23

Now the Supreme Court settled that early on.

29:28

Or, you know,

29:30

settled it as a matter of theoretical settlement.

29:31

But unfortunately the courts below have

29:35

literally dissembled decisions on,

29:39

you know they they're meaningless quite frankly anymore.

29:42

But it's also, Guantanamo is a side

29:46

where military commissions are operating.

29:50

And, you know, military commissions to judge,

29:55

to prosecute violations of the laws of war by the enemy

29:59

are also permitted.

30:03

But military commissions to prosecute people

30:05

for what are, you know,

30:08

civilian offenses if you will, like

30:10

giving aid and comfort, or money, or whatever financing,

30:14

you know, probably exceed what any country can do.

30:20

In terms of conditions of detention and treatment,

30:25

well, I think Guantanamo is unique

30:29

in the sense that there's just

30:31

no independent monitoring of it at all.

30:33

My predecessor and three other special procedures

30:37

asked to visit Guantanamo early on.

30:42

And in 2004,

30:45

you know, when Guantanamo was in use

30:47

by about two years only, they were invited.

30:49

But they were invited under conditions

30:53

that they could not accept.

30:54

And so when I became the...

30:56

Interviewer

Can you describe those conditions

30:59

that were given.

31:00

-

Well, I was going to say they were the same conditions

31:01

that were given to me eight years later,

31:02

But yeah, I mean the conditions are essentially

31:04

that you go there to be given a briefing

31:07

by the authorities.

31:09

To visit some parts of the detention center

31:11

but not all of them.

31:13

And specifically that you cannot talk to any inmate.

31:14

And so of course they had to decline.

31:18

And so when I became the special rapporteur,

31:21

I asked to go to Guantanamo early on.

31:25

And so as I said,

31:28

as soon as I was talking to the Pentagon about Manning

31:30

I was also talking about.

31:34

And in 2012,

31:36

I was sent a letter

31:38

essentially inviting me but on the exact

31:42

same terms that had been offered eight years earlier.

31:45

And I had told them, "Look,

31:48

if you give me the same terms

31:50

I won't be able to accept them.

31:51

But as everybody knows, this is a new day,

31:54

there's a new government,

31:57

there are many less people in Guantanamo now,

31:59

for all we know you're ready to close it."

32:01

So I was hoping

32:05

that they would give me more sensible conditions.

32:07

But no, they didn't.

32:11

And unfortunately that position has not changed.

32:12

I continued to ask for terms that I could accept,

32:16

but I mean,

32:21

I don't have a dialogue with the Pentagon anymore.

32:24

But in presentations to the Committee Against Torture,

32:28

for example, that the United States

32:32

has to come every five years before it,

32:33

the official position of the United States

32:36

is that Guantanamo is a military prison

32:40

and so it has different rules.

32:42

But I would say that that is,

32:46

you know, obviously there are many,

32:48

there may be many prisons around the world

32:50

that are not subject to any scrutiny,

32:52

but officially, and specifically

32:54

under these conditions Guantanamo stands alone.

32:57

Interviewer

So,

33:02

it stands alone because America believes

33:04

in human rights and the rule of law

33:07

and it's violating that, or it stands alone.

33:09

If others prisons around the world

33:12

also one would allow you to visit them

33:14

and speak to the prisoners,

33:16

why does it stand out?

33:18

-

Well,

33:21

I am invited and allowed

33:22

to speak to prisoners whenever I go,

33:24

cause otherwise I don't go.

33:27

I had visited like 12 countries during my term

33:29

and everywhere I was given the access that I require.

33:36

And I've been in very bad prisons.

33:41

Just to give you a sense,

33:44

I visited Morocco and Western Sahara,

33:46

I visited Brazil.

33:48

I visited Mexico,

33:50

Tunisia,

33:54

Tajikistan and Kurdistan, Ghana.

33:55

And only one country, Gambia,

33:59

they prohibited me from entering a prison and we

34:02

almost shut down the mission and left.

34:07

In the end we decided to stay

34:10

because the mission was almost over.

34:13

And we feel, if we left before time

34:15

we wouldn't be able to publish an official report.

34:17

But,

34:21

as a way of protesting

34:24

the violation of the terms that they had offered me

34:26

cause otherwise I wouldn't have gone.

34:28

We had refused to go to any other detention center.

34:31

And we published on the basis of testimony that we got

34:35

from people abroad in exile

34:39

or in country but we're not in custody.

34:42

And significantly, when I was, you know

34:45

having lengthy debates with the cabinet

34:49

of the government of Gambia,

34:51

someone, you know

34:57

very thought was very enlightened me,

34:59

enlightened and he told me, "Well, do you go to Guantanamo?"

35:02

And I said, "No."

35:06

And I explained all these conditions.

35:09

And they said, "Well, we don't.

35:11

If you don't go to Guantanamo,

35:14

we won't let you go into this maximum security prison

35:16

that we have here."

35:19

And so I told him, "So you're saying

35:21

that the conditions are more or less like Guantanamo.

35:23

Thanks. I'll bear it in mind."

35:26

Interviewer

When you tell the Americans

35:30

that you're permitted to all these other countries,

35:32

did they respond to that?

35:37

-

No, I think their official response is that they don't

35:39

they don't prevent me from visiting other prisons,

35:45

but Guantanamo is a military prison

35:49

and they can only offer the same conditions

35:52

to everyone that they offer journalists,

35:55

and that they offer members of Congress.

35:59

And, you know, those conditions don't apply to us.

36:02

I mean, we are special procedures we have to have.

36:04

And we can't accept them because if we're

36:07

you can imagine if I were to accept that condition

36:10

every other country in the world would say, yeah

36:14

you can come, but you can only get a briefing, a tour,

36:16

and you can't talk to any prisoner.

36:21

I have to say that the United States

36:23

is not only country that does on authorized visits.

36:24

For example, I've been asking for years to go to,

36:28

well, my predecessors and I,

36:32

30 years, we've been asking to go to India prisons.

36:34

No answer.

36:38

More recently I've been asking to go to Cuba,

36:39

Venezuela, Iran,

36:41

and they don't even bother to answer anymore.

36:45

We've asked to go to the Russian Federation

36:47

and the Russian Federation says, ""Yes, you can come.

36:53

But each interview with an inmate

36:56

has to be approved on a case by case basis."

36:57

And of course I can't accept that

37:00

because that would put people in jeopardy.

37:02

So yeah, there are restrictions in many countries,

37:06

but I would say not in most.

37:10

As I said, I visited countries that have serious

37:12

prison conditions and issues of torture.

37:16

And they do allow me to visit.

37:20

Interviewer

Did you go to China?

37:21

Well, I didn't go to China

37:23

because my predecessor had gone to China

37:24

right before I became.

37:27

So since we have 193 and 194 countries to deal with

37:29

I only asked to go to countries that had not been visited

37:35

in the last 10 years or so.

37:39

So, but I also quite frankly I think

37:41

China was very angry at my predecessors.

37:45

So I would imagine they would not have

37:48

you know, being look favorably upon my visit.

37:51

But now it's been more than 10 years,

37:55

so I'm hoping my successor will try.

37:58

Interviewer

Did you believe,

38:01

it sounds like you believe that

38:03

once President Obama became president

38:04

you might have an opening that you didn't have

38:07

under the Bush administration?

38:10

-

Yeah, but not only that because

38:12

even under the Bush administration

38:13

conditions as far as we could ascertain

38:15

from journalistic sources had changed pretty dramatically.

38:18

In 2004, they had like 800 prisoners there.

38:24

In 2011,

38:27

it was down to 200 or so, 250 maybe.

38:31

And now they're 60.

38:35

So it's even

38:37

less understandable why they don't

38:40

open up and let us see it.

38:43

Interviewer

But just to get to that question

38:45

did you think President Obama

38:46

would have a different policy from President Bush

38:48

when he became elected?

38:51

-

Well, I mean,

38:53

during the campaign he said he was going to close Guantanamo

38:55

immediately after

38:59

taking office

39:03

he issued that executive order

39:06

prohibiting torture under all circumstances.

39:08

And he continues to this day

39:12

saying that he wants to close Guantanamo.

39:17

So I,

39:20

that's why I think the conditions for a

39:24

more reasonable visit were there.

39:28

But unfortunately it hasn't happened.

39:31

I have to say that I

39:33

tried also to go to prisons in the mainland afterwards,

39:35

I started asking for a visit maybe in 2013.

39:39

But for the last three and a half years

39:45

I've been asking to go to prisons

39:48

and I haven't been able to visit there either.

39:51

Interviewer

Visits non military prison or...

39:56

-

No, no, no, no civilian prisons.

39:57

Interviewer

In America...

39:59

-

Yeah.

40:00

I narrowed my request to look at solitary confinement.

40:02

So then, you know

40:07

they started processing an invitation

40:08

then months later they asked me, where do I want to go?

40:11

And I said, "Well, I want to go everywhere."

40:15

But you know, "Just tell them,

40:16

tell everybody that I'm coming and I'll visit."

40:19

And I know that's not easy because

40:22

of the federal state will I have to ask for.

40:24

So, at some point they come back and they say

40:28

you have to tell us which states

40:35

and the federal prisons are unavailable.

40:39

And so I said, "Well, no,

40:43

let's go back to the drawing board.

40:45

I mean, what do you mean unavailable?

40:46

Unavailable today?

40:48

Are they going to be available next year?

40:49

Because otherwise I can't let you

40:51

allow me to visit a say California prisons,

40:54

but not federal prisons."

40:57

And so then they,

40:59

then I did relent a bit and I said, "Okay,

41:01

I want to go to California, Louisiana, Pennsylvania,

41:04

Illinois, New York State."

41:08

I think that was it.

41:11

And then they asked me which prisons, you know

41:12

and I said, "Okay, I'll give you two

41:14

or three prisons in each of those states."

41:17

And I submitted them.

41:18

At that point

41:22

about a year ago September of 2015,

41:23

I had a meeting at the State Department

41:28

and they told me that

41:31

state after state had declined to invite me.

41:32

And the only prison that was inviting me was Rikers island.

41:39

That's a city prison as you know, not a.

41:44

But even state prisons in the same state I couldn't visit.

41:46

And then, and as for ADX in Colorado, a federal prison,

41:50

they said that they were okay with the

41:56

conditions that I was asking for.

41:59

That they would monitor visually but not audio,

42:02

if I talk to inmates.

42:05

But that I couldn't visit with anybody accused

42:07

or convicted of terrorism.

42:11

So I told them that we had to go back to the drawing board.

42:14

I couldn't accept those terms.

42:16

I can't accept the government telling me

42:17

who, which prisoners I can talk to.

42:20

You can imagine if they select the prisoners for me

42:22

how do I know that what these people tell me

42:26

is what really happens.

42:28

And unfortunately

42:32

that's where it ended.

42:36

A year later, I have no better conditions than those.

42:39

I'm hoping that my successor will continue

42:44

to ask for an invitation

42:47

and that eventually he'll be given better terms.

42:49

But I've had to be public about this.

42:52

I've had to say that this is not the kind

42:55

of cooperation that

42:58

the special procedures should get from the United States.

43:00

Interviewer

Even with the argument that

43:04

Guantanamo is a military prison.

43:05

-

Doesn't apply to the others.

43:07

Interviewer

You are right so yeah.

43:09

-

I have to say that after long waits and,

43:11

you know, because

43:15

I accepted the possibility of being

43:18

an expert witness in some litigation.

43:19

And in that capacity,

43:23

I went to interview prisoners

43:24

in Pelican Bay in Northern California

43:26

and in a prison near Philadelphia called Granderson.

43:29

Both cases have been settled now.

43:34

So, but I did present a report after interviewing.

43:37

So, and in both basis,

43:42

they showed me the solitary confinement cells.

43:43

So, I mean, it's a limited way.

43:48

That's not the way I would like to do the visit

43:50

because you know,

43:53

when you visit, you go with with authorities.

43:57

When you interview, you interview privately.

44:00

But when you're visiting the facilities,

44:02

they are walking with you.

44:05

That's not the way I want to do it.

44:07

But because in that case,

44:10

I was acting as as an expert witness

44:11

not as a special rapporteur, I made that exception.

44:15

Interviewer

Do you ever worry about retribution

44:19

against the prisoners who agree to speak to you?

44:21

-

Yes and we try to monitor.

44:25

The problem for

44:26

me and my team is that we are,

44:30

you know, we don't have too many resources

44:34

and we don't have people in country.

44:36

So, monitoring that nothing happens after we leave

44:38

is very complicated.

44:42

The another body called the special,

44:43

sorry the,

44:47

The Subcommittee On The Prevention Of Torture

44:50

which is a treaty body that visits prisons regularly,

44:52

they report that they get reprisals almost every,

44:56

in every country that they visit.

44:59

But they have a capacity to monitor.

45:01

In my years, I encountered problems with reprisals

45:04

one or two times.

45:10

One in Morocco once.

45:11

And it was not so much,

45:15

you know, well, it was serious but it wasn't

45:17

egregious because the

45:22

inmate who had talked to us was visited during the night

45:25

and asked to tell what he had told us.

45:29

And of course he found it threatening but

45:33

we made a stink and it didn't go beyond that.

45:36

Interviewer

From your studies over Guantanamo,

45:41

even though you weren't able to visit on your terms,

45:44

could you describe what you know about solitary confinement

45:46

in Guantanamo and how it's evolved?

45:50

-

Yeah.

45:54

I think the evidence is very diffused on that.

45:56

I know for example,

45:59

because the Senate Select Committee on Intelligence

46:01

did not particularly concentrate.

46:05

I mean, at least the summary

46:07

that is the only thing that is public,

46:08

doesn't concentrate on solitary confinement as such.

46:10

And also because it doesn't deal only with Guantanamo,

46:15

but with all the extraordinary renditions

46:18

and black sites, et cetera.

46:20

And also it's a report that is more based on

46:24

you know, based on

46:29

determining that the CIA lied to the Senate.

46:31

And that,

46:34

and then in fact it later light again when it said

46:36

that torture had given good results.

46:39

So, in terms of intelligence, I mean.

46:42

So and for that reason,

46:46

the report is a very good source but it's incomplete.

46:49

I mean, they didn't specifically

46:52

look at solitary confinement.

46:54

My understanding is that Guantanamo Bay

46:56

is several prisons in one.

46:59

And that there are some that have had

47:03

a little more access and some less,

47:06

that at some point,

47:09

maybe not now but during this what 14 years,

47:11

some of the prisoners were in solitary.

47:16

But to establish, you know

47:21

who and for how long, and for what reason, et cetera,

47:24

it has become very difficult.

47:29

I mean, we are getting the story on a piecemeal basis

47:31

and we're the more that we learned the more

47:35

egregious it seems.

47:41

But my sense is that we have

47:44

only scratched the surface so far.

47:46

Interviewer

And you had written that

47:50

you believe that after 15 days of solitary confinement,

47:52

there are serious

47:57

applications that aren't able to be reversed.

48:00

-

Well,

48:03

what I said in my

48:04

thematic report that was published was given

48:07

to the General Assembly of the UN in October of 2011,

48:09

was that I was trying to determine that solitary confinement

48:14

could cross the line into cruel inhuman

48:19

and degrading treatment or even torture.

48:21

And I used the prohibition of mental torture as a basis.

48:24

And then I used scientific literature,

48:29

psychiatric literature mostly,

48:32

that says that after 15 days

48:35

of being alone

48:38

and not having meaningful social contact with anybody,

48:41

your mind starts working differently.

48:44

The same literature

48:47

ascertains that in some cases not all,

48:50

but it could be irreversible consequences.

48:53

So, basically the argument then that I made was,

48:56

you know, first we should prohibit

49:00

prolonged solitary confinement.

49:04

And the reason we should prohibit

49:07

prolonged solitary confinement

49:08

is that short term solitary confinement

49:09

may have some legitimate uses.

49:12

For example, to protect someone who would be vulnerable

49:14

if left in the general population.

49:19

Or to

49:22

isolate a predator that could be dangerous to others.

49:25

Or for very serious disciplinary offenses.

49:29

but then it should be short term

49:33

and it should be surrounded by due process guarantees.

49:35

And, you know, then trying to determine what

49:42

constitutes prolonged solitary confinement.

49:46

I came up with a somewhat arbitrary

49:49

term of 15 days.

49:53

But I say somewhat arbitrary because it is

49:55

born from or

49:58

borrowed from the psychiatric literature.

50:01

It's not arbitrary in that sense.

50:03

I'm sure there are people who can be

50:07

20 days in solitary confinement

50:10

and the next day they are fine.

50:12

But,

50:14

if you're going to legislate a cart

50:16

then what data are you going to use?

50:21

And I later, you know, in you in public speaking, I said,

50:23

well, you know, maybe 15 days for absolute confinement,

50:28

but if you have a couple hours a day that you can exercise

50:33

maybe a

50:37

a slightly longer term would be okay.

50:39

But it should be counted in days, not even in weeks,

50:42

and certainly not in months or years.

50:45

And the other thing that I called for

50:47

was a complete ban on indefinite solitary confinement.

50:50

Because if you don't know,

50:54

you know, when it's going to end

50:56

it stands to reason that they do have,

50:59

it just adds to your anxiety to say the least,

51:02

We also called for a ban on

51:05

solitary confinement of any duration

51:09

when used against people with any mental disability,

51:12

and to children.

51:16

Anybody under 18.

51:18

And that again was

51:20

drawn from the psychiatric literature

51:23

that says clearly that children suffer isolation

51:28

in different ways than adults.

51:32

And also because people with mental disabilities

51:34

only get those disabilities

51:37

only get exacerbated by isolation.

51:39

And then

51:45

we also called on a ban on pregnant women

51:47

and women who were breastfeeding.

51:50

Those would be absolute, I mean, not even short term.

51:54

A couple of years later

51:58

when a document called the standard minimum rules

51:59

for the treatment of prisoners was revised,

52:03

the Standard Minimum Rules didn't contain anything on

52:09

regulating solitary confinement.

52:13

All they said was

52:17

that if anybody was going to be put

52:20

in solitary confinement

52:22

they should get medical attention or medical.

52:24

They should be examined medically.

52:26

Interviewer

What were those standard minimum rules?

52:29

-

Well, the Standard Minimum Rules

52:30

is a document from the 50s.

52:31

It was done

52:33

by what was then called the Crime Prevention Branch

52:35

of the United Nations.

52:39

It's an institutional the United Nations

52:40

that's based in Vienna.

52:43

And that does

52:45

standard setting around, questions of

52:47

criminal justice basically.

52:50

And this is their,

52:53

this document has been a widely cited.

52:54

It's not binding.

52:58

It's a soft law document as they call it,

53:00

but it's widely cited

53:05

and considered authoritative.

53:07

It was revised in the last couple of years

53:12

and now the rules are called the Nelson Mandela Rules.

53:15

And it includes now regulation of solitary confinement.

53:18

And it adopted what I had proposed.

53:25

A ban on anything beyond 15 days,

53:28

a ban on indefinite solitary confinement,

53:30

a ban on confinement of any duration

53:33

for these three categories of prisoners that I mentioned.

53:36

Interviewer

So did you study in

53:41

about juveniles who were in Guantanamo?

53:43

Did you do any work in that area?

53:46

-

No, we know of some people,

53:48

like I think the Canadian who...

53:49

Interviewer

Omar Khadr.

53:54

-

Yes

Interviewer

And is that a violation

53:57

as a UN sees it or is it?

53:58

-

But we don't know the facts.

54:00

I mean, I don't know if he was held in solitary confinement

54:01

in when he was in Guantanamo.

54:04

I mean, at least maybe someone knows

54:06

cause he's now in Canada, he must have been interviewed.

54:10

But if he was held for in solitary,

54:14

yes it's a violation.

54:16

But you have to bear in mind that

54:20

the Nelson Mandela Rules were approved in 2015.

54:23

So, although there's nothing wrong

54:28

with applying them retroactively

54:30

because it's not a criminal statute.

54:33

The government can escape it by saying,

54:37

well it wasn't in place at the time.

54:40

So there was no probation on keeping

54:43

juvenile offenders in solitary.

54:46

Interviewer

One of Omar Khadr's lawyers

54:48

on military wise spoke to us and he told us that

54:50

the US in theory would use a 30 day standard

54:53

for isolation or solitary confinement,

54:57

but that they told the lawyer

55:01

that Omar Khadr wasn't in that situation circumstances

55:04

because he had a slid at the bottom of his cell.

55:09

And he could yell through that slid to neighboring

55:12

detainees and therefore he wasn't really in solitary.

55:17

Had you had that kind of argument?

55:19

-

Yeah, I have.

55:21

And, you know, and that's why we call it

55:22

meaningful social contact.

55:25

In Pelican Bay for example,

55:27

all the cells are in a row,

55:29

one one after the other.

55:33

But with the open door.

55:34

Not the open door.

55:37

The closed but barred door facing front.

55:38

So you can only talk to your neighbors by yelling.

55:42

And the guards don't let you yell

55:49

because it's very disruptive.

55:51

So in essence the inmates told us,

55:53

yeah, especially if they've been there 20 years

55:57

that they actually don't want to speak to dissemble voices.

56:00

I mean, they don't even do that anymore.

56:04

So when we talk about meaningful social contact

56:09

we exclude contact with guard.

56:12

Many states, including the United States

56:14

come back and say, what do you mean solitary confinement?

56:16

There's somebody brings them their food,

56:20

they also have medical doctors come and examine them,

56:21

the guards are, you know

56:25

keeping track on them all the time.

56:27

And what the Nelson Mandela Rule say is, you know

56:30

the contact has to be with other inmates,

56:34

with, you know, people who they relate to

56:37

and not in an adversarial way.

56:39

So, prison personnel don't count for this purposes.

56:43

And this question of being able to yell

56:49

through some slid in the door,

56:52

you know,

56:56

it's a ridiculous argument.

56:57

I mean, you're still isolated.

56:59

In fact, because you yell because you're isolated.

57:00

So,

57:04

there's also

57:06

and I think this was used in Guantanamo,

57:09

that the military rules on interrogation, not on detention,

57:11

allow for what the rules called separation of an inmate.

57:16

And they allow for up to 30 days, but renewable.

57:21

And it's a technique to soften up the prisoner

57:26

so he would talk.

57:30

And that I firmly believe that that's a form of coercion

57:32

and it's impermissible.

57:37

Even if it's not,

57:39

it's not waterboarding,

57:41

it's not electric shock,

57:43

it's not beating somebody to a pulp,

57:47

it's still coercion.

57:51

And

57:53

it's impermissible in international law.

57:54

In fact,

57:58

some news organization

58:02

through freedom of information act request obtain

58:05

those regulations that are applied in Bagram and in,

58:10

Interviewer

Kandahar or in Guantanamo or?

58:18

-

No, no in Iraq.

58:20

Interviewer

Abu Ghraib

58:22

-

Abu Ghraib.

And

58:25

the rules themselves allow for

58:27

period of separation of 30 days

58:30

but they are renewable also.

58:32

So,

58:35

and this is as a means of interrogation,

58:38

not even as a condition of detention alone.

58:41

So, it's even more

58:45

the relationship with the prohibition on

58:47

cruel, inhuman and degrading treatment

58:50

is even more direct in those cases.

58:51

Interviewer

So when US says that

58:53

they follow their own standards by giving

58:55

people no longer than 30 days of a solitary confinement,

58:58

is really not true if in fact they just keep renewing them.

59:02

-

That's right.

59:05

But,

59:07

that's one aspect of it.

59:09

I mean, I'm not saying that that's the only segregation

59:11

or separation that the Pentagon uses.

59:15

I'm saying that in the course interrogation

59:19

they can use that and they do use it apparently,

59:23

and they can extend it beyond 30 days.

59:26

But that doesn't mean that they don't use it

59:29

for other purposes elsewhere, for example in Guantanamo,

59:31

I don't know they're using it now or not.

59:35

But until we know more,

59:37

outside that regulation they may be using it

59:42

for other purposes.

59:44

Interviewer

You know, what frequent flyer is

59:46

where people have told us that they,

59:47

that detainees were moved every two or three hours

59:50

from cell to cell and for weeks on end.

59:53

In fact, the juvenile was the first person

59:57

who was moved like that and they called it frequent flyer.

1:00:00

And so as soon as he settled into a cell

1:00:02

he was picked up and moved to the next cell.

1:00:04

So he never got to sleep, rest in any cell.

1:00:06

Had you heard that in...

1:00:09

-

Yeah, I've heard about frequent flyer.

1:00:11

I didn't know the details

1:00:12

but anything that's sleep deprivation

1:00:14

is also cruel, inhuman and degrading treatment.

1:00:17

I think the European Court of Human Rights

1:00:23

has some decisions that says sleep deprivation

1:00:24

that is not made necessary by the,

1:00:28

you know, regular interrogation cycle.

1:00:32

You know, that you need to

1:00:34

finish a criminal file before midnight.

1:00:37

And even in those cases,

1:00:42

at least with intervals of four to six hours

1:00:44

the European Court says, those cases will be okay.

1:00:48

But sleep deprivation

1:00:53

only for the purposes of sleep deprivation

1:00:54

is a form of mental torture

1:00:58

or even physical, you could say.

1:01:01

Interviewer

Had you heard of that in Guantanamo?

1:01:04

-

No,

1:01:06

No.

1:01:08

Not saying that it doesn't happen.

1:01:09

I haven't had complaints or denunciations of it though.

1:01:10

Interviewer

Did Guantanamo seem to you

1:01:19

and you kind of said this before

1:01:22

but I just think it's important to say it again as

1:01:23

awful.

1:01:32

As other prisons that you did experience,

1:01:34

that you did visit, I mean,

1:01:38

because people always pointed at one time

1:01:39

like you gave the example in Gambia

1:01:41

saying, well you know, Guantanamo did this,

1:01:43

why can't we do it?

1:01:46

Is Guantanamo, where does it fall on the range of cases?

1:01:47

-

Well, I mean, it's very difficult to compare prisons

1:01:52

because

1:01:55

in many countries prisons, for example

1:01:59

that have very serious overcrowding,

1:02:01

the people are not isolated

1:02:03

and they have a lot of liberty.

1:02:06

So much liberty that then they are predators of each other.

1:02:07

There's a kind of a tendency to self-govern.

1:02:13

And that means that gangs become

1:02:17

the rulers and that those gangs

1:02:22

have the support of the prison guards, et cetera.

1:02:25

Those places are incredibly violent,

1:02:28

and they are unhygienic,

1:02:31

unsanitary.

1:02:34

They don't have minimum services.

1:02:36

The food is awful.

1:02:38

You know, obviously they don't have religious services.

1:02:41

So, if you could compare Guantanamo to those

1:02:44

in those aspects,

1:02:47

Guantanamo probably is a clean place, I suppose.

1:02:49

They get their three meals a day.

1:02:55

They get their Koran.

1:02:56

But,

1:02:59

if you compare in terms of

1:03:01

first their ability to seek judicial determination on the

1:03:06

on whether they should be in prison or not,

1:03:11

I mean, they're very places in the world,

1:03:14

very few places in the world

1:03:17

that have people for years on end

1:03:19

without determining that they committed any crime.

1:03:21

Even military prisons, you know,

1:03:26

in military conflict there are no conflicts

1:03:29

around the world today where one

1:03:32

armed force is keeping the soldiers of another armed force

1:03:36

until the end of hostilities.

1:03:39

That's permissible, but there aren't any.

1:03:42

And if there are, they last a couple of years

1:03:44

and then they close them down.

1:03:46

So,

1:03:49

even in Iraq and Afghanistan the detention

1:03:51

is, you know,

1:03:55

move towards the authorities of the country to determine,

1:03:58

you know, whether they are criminally liable or not

1:04:03

and then they serve their time.

1:04:06

But prolonged arbitrary detention of this sorts today is,

1:04:08

Interviewer

Like in Guantanamo.

1:04:13

-

Is unique, yeah.

1:04:15

I think.

1:04:17

At least I can't think of a place.

1:04:20

I mean, there's a lot of arbitrary detention

1:04:22

for violation of criminal procedure.

1:04:25

And that, again, that's not my mandate,

1:04:28

It's a mandate of the Working Group On Arbitrary Detention.

1:04:30

But many of the cases that they deal with around the world

1:04:33

have to do with long delays in determining

1:04:36

whether someone is guilty or innocent

1:04:39

time that you spend actually in custody.

1:04:42

Or unfair trials that become arbitrary

1:04:45

because they're unfair.

1:04:50

But no trials whatsoever, like we had in Argentina

1:04:52

when I was in custody or as applied in

1:04:56

to some of the people who are still in Guantanamo,

1:05:00

that's not that frequent.

1:05:03

Interviewer

Had you heard of linguistic isolation?

1:05:07

Where men were put with people

1:05:09

who didn't speak their language.

1:05:11

And so essentially,

1:05:13

even though they were able to quote communicate with others

1:05:13

they had no meaningful conversation

1:05:17

because there was no one they could really talk to.

1:05:19

Maybe that happened in some places in Guantanamo.

1:05:21

-

No, I haven't heard.

1:05:26

I haven't heard.

1:05:27

I mean,

1:05:29

if it's deliberate

1:05:32

Interviewer

Some people though,

1:05:35

some lawyers believe did was deliberate

1:05:36

that some Pakistanis who spoke Urdu were deliberately put

1:05:38

with people who didn't speak,

1:05:42

who only spoke Arabic or English.

1:05:44

-

Yeah.

1:05:46

Well, if it's deliberate it's a form of isolation.

1:05:47

I agree.

1:05:49

But I

1:05:51

first I haven't heard,

1:05:54

but if I had a case like that

1:05:55

I would ask questions as to

1:05:57

whether there were alternatives or not.

1:06:00

If they could find another

1:06:02

person speaking in the same language

1:06:05

should they put them together?

1:06:07

And the answer is yes.

1:06:08

But it depends on the circumstances

1:06:10

Interviewer

When

1:06:15

there was some,

1:06:16

and it was before you became a rapporteur but

1:06:19

there was a belief this Arab was one of them,

1:06:21

that people in to Guantanamo

1:06:24

were disappeared into Guantanamo initially because

1:06:26

the US did not release the names of the prisoners until

1:06:29

2006, I believe.

1:06:32

Did you do any research in there?

1:06:34

-

No.

1:06:39

Because as you say,

1:06:42

it was early on in a war against terror.

1:06:44

But as you probably known,

1:06:46

there's even now a case going on against Ashcroft

1:06:48

who was the attorney general at the time,

1:06:52

on immigration detention in the continent,

1:06:56

in the continental USA.

1:06:58

Because they never released the names

1:07:01

of something like 800 people that they had arrested.

1:07:03

Many of them they deported.

1:07:06

Some I suppose they may have released.

1:07:09

But what's really strange is that

1:07:12

they didn't confirm the number

1:07:16

and they didn't give names or anything.

1:07:17

So I wouldn't be surprised

1:07:23

if they did.

1:07:26

And Guantanamo was a closed place all the time.

1:07:27

and early on,

1:07:30

we had only the word of the Pentagon

1:07:33

for how many people were there and not even the names.

1:07:36

They didn't issue the names.

1:07:40

-

So coming from your background in Argentina

1:07:42

and doing the work you did for Amnesty International

1:07:46

for all those years,

1:07:50

do you find it strange here

1:07:52

in later years that US has become such a focal point of

1:07:54

torture and arbitrary detention and cruel unusual?

1:08:03

-

Well, I mean, at Human Rights Watch

1:08:08

we started working with other countries.

1:08:10

But relatively on we started looking at

1:08:13

inside into the United States,

1:08:16

on the assumption that every country has

1:08:21

some human rights performance to improve upon.

1:08:22

And so we started visiting prisons, for example,

1:08:26

and things like that.

1:08:29

It wasn't my job so much but I was aware of it.

1:08:30

And I did visit

1:08:33

a maximum security prison in Wabash Valley in Indiana

1:08:35

for Human Rights Watch.

1:08:41

But, you know,

1:08:43

then we also did a little bit of work on police,

1:08:44

you know, brutality,

1:08:49

questions of selective enforcement or

1:08:51

racial profiling, things like that.

1:08:57

Now, but after 2001

1:08:59

the portfolio that Human Rights Watch

1:09:02

does on the United States is extensive.

1:09:05

And it includes Guantanamo but it includes also

1:09:09

the trials of people accused of terrorism

1:09:13

that were never taken to Guantanamo but brought

1:09:17

sometimes extradited from other countries

1:09:21

to the United States and then prosecuted and sentenced here.

1:09:24

But also allegations of

1:09:29

serious violations committed abroad by US forces.

1:09:34

So, yeah, I would say that

1:09:39

when the Bush administration authorities

1:09:48

said that they were taking the gloves off,

1:09:52

or that they were going to go to the dark site

1:09:55

like Cheney said, they meant it.

1:09:57

And that, that did change.

1:10:00

And it changed in ways that we never expected

1:10:02

that could happen in a country like this.

1:10:05

I also don't think that this is permanent,

1:10:11

I hope it's not permanent.

1:10:13

I think we can go back to being,

1:10:17

I'm not going to say that the United States is an example

1:10:23

to the world or anything like that,

1:10:25

I think there are countries that have better

1:10:27

human rights records completely aside

1:10:28

from the war on terror than the United States.

1:10:30

But there are some things that were

1:10:34

when I came to this country unthinkable

1:10:36

and hopefully they'll become unthinkable

1:10:39

not too far from now.

1:10:45

Interviewer

When we spoke to some detainees,

1:10:48

they said that when the US first captured them or held them

1:10:49

they were delighted because

1:10:54

they felt the US would treat them well.

1:10:56

And they had a very different image of the US

1:10:59

to the experience they then had in Guantanamo.

1:11:01

So did you, as you travel around the world,

1:11:04

did you pick that up too?

1:11:06

That people thought the us was better than

1:11:07

what you're describing?

1:11:11

-

Yeah. I mean, not in those precise words

1:11:12

nobody ever told me that they.

1:11:16

And besides remember, I became the special rapporteur 2010

1:11:18

when not too many countries around the world

1:11:22

had any illusions about the United States being a paradigm

1:11:24

anymore.

1:11:28

Interviewer

Right.

I guess, I don't have that much more

1:11:32

unless you want to talk about,

1:11:35

and it's not really part of this project

1:11:36

but if you feel you'd like to add something

1:11:38

about the black sites just to give a perspective on

1:11:39

and all that's happened post 911,

1:11:45

it might be worth something for this...

1:11:47

-

Yeah.

1:11:50

Well,

1:11:51

I think it's related because many people

1:11:52

who were in black sites were later brought to Guantanamo

1:11:54

and sometimes we're taken off Guantanamo,

1:11:57

taken to black sites and brought back.

1:11:59

I think the,

1:12:03

my predecessors,

1:12:07

my predecessor

1:12:08

and several other

1:12:10

special procedures

1:12:14

or special rapporteur on counter terrorism,

1:12:15

on human rights during counter terrorism,

1:12:18

and the Working Group on Arbitrary Detention

1:12:21

and the Working Group on Disappearances,

1:12:23

they conducted or commissioned actually

1:12:25

a study of detention policies around the world

1:12:28

that was very revealing, very significant.

1:12:32

And that, you know,

1:12:37

later we have tried to

1:12:38

update it and follow up on it

1:12:41

but we're not getting cooperation from any states.

1:12:44

We get trying to get information

1:12:48

to see if we can update it and see what has happened since.

1:12:51

But the UN Commission report is really very good.

1:12:55

Very well done.

1:12:59

But there's also others and for example,

1:13:00

Open Society Justice Initiative has a

1:13:04

report that mentioned something like 54 countries

1:13:07

around the world cooperating with extraordinary renditions.

1:13:11

And of course the degrees of cooperation vary.

1:13:16

For example, some land facilities like in Poland or

1:13:19

so others allowed planes to use their airspace

1:13:24

or their landing facilities

1:13:28

knowing that they carried.

1:13:33

And also deleting records to, you know, not to leave traces.

1:13:35

The European Court on Human Rights has already issued

1:13:42

two or three decisions,

1:13:44

final decisions against countries like Macedonia

1:13:47

and Poland

1:13:52

on cases of people who are one of them is in Guantanamo now.

1:13:55

And was tortured in Poland by CIA agents.

1:14:01

So yes, we are learning a lot.

1:14:05

We learning also about the methods of torture

1:14:08

but unfortunately we don't have much cooperation

1:14:15

in the sense of truth telling by the United States.

1:14:17

Because other than those two

1:14:23

Senate committee reports that I mentioned,

1:14:26

and the second one heavily redacted and a summary,

1:14:29

the United States has not come clean

1:14:34

on the extent of torture.

1:14:37

And you know, the extent of torture is one aspect,

1:14:42

but the international standard is very clear

1:14:46

that the state is not only is responsible

1:14:50

for telling the truth about what happened.

1:14:53

and of course, I mean the whole truth,

1:14:55

but also for prosecuting those who may be responsible.

1:14:58

And they're the standard, I mean,

1:15:02

the official position of the United States right now

1:15:04

is that they are not providing an amnesty or a pardon

1:15:08

but so supposedly possibilities of prosecution are open.

1:15:13

But in fact, the Durham Inquiry

1:15:17

the special prosecutor that was appointed to look into it

1:15:21

ended up in a slap in the wrist

1:15:25

saying that it was wrong too bad

1:15:27

but not recommending any prosecution.

1:15:29

And the reason that

1:15:33

the official reason on the Department of Justice

1:15:35

has decided not to prosecute any of the cases that are now

1:15:37

pretty well known

1:15:40

is because they take the,

1:15:43

and they do it in a categorical basis that

1:15:45

anyway anybody who committed torture in those circumstances

1:15:49

was under the mistaken impression that it was legal,

1:15:54

because of the so-called torture memos.

1:15:58

Torture memos were withdrawn even by the Bush administration

1:16:01

when they were leaked.

1:16:03

I mean, and at the same time there were a memo.

1:16:05

I mean, that's not legal advice.

1:16:08

And that even legal advice that is clearly illegal

1:16:10

doesn't exempt you from responsibility.

1:16:14

So, I think the United States is failing

1:16:17

its international obligation to investigate, prosecuted

1:16:20

and punished every case of torture,

1:16:24

with this policy of looking forward and not looking back.

1:16:27

I do give credit to President Obama

1:16:30

for apparently putting a stop to torture.

1:16:32

Because for all I know

1:16:37

during the years of the Bush administration

1:16:38

we did know that, you know, maybe 50 cases or so

1:16:40

of people who were

1:16:44

given to other countries in extraordinary renditions

1:16:48

or taken to black sites.

1:16:50

And since 2009, we don't know if new cases.

1:16:53

So hopefully that prohibition is firm and holding.

1:16:57

But you never know because there's also secret

1:17:02

that there could be just getting better at it.

1:17:05

And while the United States refuses to come clean

1:17:09

and to prosecute where the prosecution is warranted,

1:17:12

there will always be suspicion.

1:17:15

You know, that there's much more behind the surf

1:17:17

than beyond the surface.

1:17:19

Interviewer

Well, how common is it

1:17:21

for countries to come clean?

1:17:22

-

No, it's not coming at all.

1:17:24

No. I mean,

1:17:26

countries come clean when their civil society insist a lot,

1:17:28

when their embarrassment before the community of nations

1:17:31

is such that they need to do something to show good faith.

1:17:35

And that of course means that some countries are,

1:17:38

you know, more isolated from that kind of pressure

1:17:41

than others.

1:17:46

So, yes, it's hard to say but powerful countries

1:17:47

can get away with violating international law

1:17:50

and poor countries cannot.

1:17:52

Interviewer

Well, when you said the US is obligated,

1:17:56

did you say the US is obligated to come clean

1:17:59

or to prosecute these people?

1:18:01

-

Both.

1:18:03

Interviewer

Under what laws?

1:18:04

-

Under the Convention Against Torture.

1:18:05

The Convention Against Torture

1:18:07

that the US has signed and ratified

1:18:08

says very clearly that every instance of torture

1:18:11

has to be investigated,

1:18:14

and investigated means publicly disseminated the results,

1:18:16

but also prosecuted.

1:18:21

So, yeah...

1:18:25

Interviewer

How does the US respond to that?

1:18:26

-

I'm sorry.

1:18:28

Interviewer

How does the US respond to that?

1:18:29

-

As I said, the official position is that, you know

1:18:33

if they ever get a good case and prosecuted

1:18:36

or something like that,

1:18:39

but that the cases that they have so far

1:18:40

are protected by this sense that people cannot be prosecuted

1:18:43

because they thought they were doing the right thing.

1:18:48

Which is pretty preposterous.

1:18:51

Because if that's a factual circumstance

1:18:52

it should be adjudicated by a jury or or by a judge,

1:18:56

but not by the Department of Justice

1:18:59

on a categorical basis for everyone.

1:19:02

Interviewer

Going forward, do you think Guantanamo

1:19:07

will close under the next administration?

1:19:08

-

Well, I hope so.

1:19:11

I mean, I had hopes that it would close

1:19:12

under this administration but

1:19:15

I think,

1:19:18

you know, no matter who wins the election

1:19:21

it's going to be difficult to use Guantanamo again

1:19:25

it's such a stain in the reputation of the United States.

1:19:28

It complicates it's relations with even the most friendly

1:19:32

of its allies in so many ways that

1:19:36

any administration would have to say,

1:19:43

you know, we have to find some other way.

1:19:47

It doesn't mean that torture will never be used again

1:19:50

it doesn't mean that some forms of

1:19:53

arbitrary detention will be used,

1:19:57

but President Obama is quite right in saying that

1:19:59

Guantanamo has become a symbol and a symbol that doesn't

1:20:03

do any favors to the United States.

1:20:07

So, my sense is that it'll close down.

1:20:09

One would hope that it would be a less

1:20:16

prolonged death

1:20:20

but I don't think it will be used as extensively at least

1:20:23

in the future.

1:20:27

Interviewer

I might have had much more, Juan,

1:20:28

we are almost finished,

1:20:30

but I just wanted to go back to something

1:20:31

that I brought up before.

1:20:32

The psychological torture,

1:20:34

do you think looking forward to,

1:20:36

so looking forward do you think

1:20:37

that's going to be more common?

1:20:39

The isolation and solitary confinement

1:20:41

as opposed to the physical or will they both be

1:20:43

present in the way countries behave, in the way US behaves?

1:20:46

-

All right, I think we're getting a little more awareness

1:20:51

that solitary confinement is a form of mistreatment.

1:20:56

Under, you know, prolonged and

1:21:01

or indefinite solitary confinement.

1:21:03

It's something that kind of,

1:21:08

you know, we weren't aware of

1:21:12

and it was done increasingly in larger and larger numbers.

1:21:14

And it is a phenomenon that I think is growing

1:21:19

in other countries as well.

1:21:23

But also in those other countries there is,

1:21:24

just like in the United States,

1:21:29

a move to reflect on it and think about it.

1:21:31

Are we on the right path here or not?

1:21:35

And I think in this country especially

1:21:39

the president himself brought attention to it and, you know,

1:21:42

visited a prison himself for the first time ever.

1:21:45

Two justices of the Supreme Court

1:21:49

have expressed doubts about solitary confinement

1:21:51

in different cases.

1:21:53

And there's being congressional hearings.

1:21:56

There are directors of corrections in many states

1:21:59

who vocally advocate against solitary confinement.

1:22:02

So, I think we're getting somewhere.

1:22:07

I don't think we're going to get a wholesale prohibition,

1:22:10

I think it's going to be a piecemeal approach.

1:22:13

But I think

1:22:16

the days in which these things happen

1:22:20

because we didn't know about them are gone.

1:22:23

And so I think from now on we'll have

1:22:28

hopefully a steady pace towards

1:22:30

abolition of prolonged and indefinite solitary confinement.

1:22:33

It's happening in other countries as well.

1:22:38

For example, in Brazil there

1:22:40

the Supreme Court has under advisement hasn't ruled on it,

1:22:41

a challenge to the regulations of solitary confinement

1:22:47

that exist in their books.

1:22:50

In Canada, I'm acting as expert witness in two cases

1:22:53

again challenging solitary confinement in Canada.

1:22:57

So,

1:23:03

well in Japan actually,

1:23:05

recently a woman was released after 20 years in prison

1:23:07

because he had confessed to killing her daughter.

1:23:12

And it turns out she hadn't.

1:23:15

And she only confessed because

1:23:17

it was the only way for her to leave

1:23:19

this maddening situation of solitary confinement.

1:23:22

And so, as a result of that,

1:23:27

Japanese courts are reviewing many cases

1:23:29

in which solitary confinement was used

1:23:33

as a tool of interrogation.

1:23:35

So I think we have some movement

1:23:38

in different parts of the world.

1:23:40

Interviewer

Is there something I didn't ask you

1:23:45

that you thought about before you came that you just...

1:23:46

-

No, not that I can think of.

1:23:49

Not that I can think of.

1:23:51

-

Well, the last thing, and then I think we're done is,

1:23:53

does UN interface with the ICRC

1:23:55

does he get to see the ICRC reports

1:23:57

and can use it in its own work?

1:24:00

-

The UN or the US?

1:24:03

Interviewer

UN.

-

Well, as you know the ICRC reports are confidential

1:24:05

to the states and invite them.

1:24:09

They

1:24:12

occasionally published reports where

1:24:13

if, for example, the relevant state misrepresents

1:24:16

what they told them.

1:24:20

Or aspects of reports, if they feel that they need to

1:24:22

you know, that they've discovered something really bad

1:24:28

and they need to put pressure on the states.

1:24:31

Otherwise no.

1:24:35

I mean their confidential means

1:24:36

confidential for the UN as well.

1:24:38

Interviewer

You can have access to them...

1:24:39

-

No, no, no.

1:24:41

Interviewer

Well, I think unless there's nothing else

1:24:44

I think it was a wonderful interview.

1:24:47

So we need 20 seconds of our room tone before we can end it.

1:24:50

And Johnny's going to do that and then we can end it.

1:24:54

-

Sure.

1:24:56

Johnny

We go room tone.

1:24:58

Mendez, Juan - Interview master file

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